New South Wales Supreme Court CITATION : JONES v. GOSSAMER DOWN CASHMERE PTY. LIMITED [2001] NSWSC 98 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC No. 11237 of 2000 HEARING DATE(S) : Wednesday 28 February 2001 JUDGMENT DATE : 28 February 2001 PARTIES : Myril Molly JONES & ANOR v. GOSSAMER DOWN CASHMERE PTY. LIMITED JUDGMENT OF : Greg James J at 1 LOWER COURT Agricultural Arbitration Committee JURISDICTION : LOWER COURT N/A FILE NUMBER(S) : LOWER COURT Ian Sell; George Berry; John Watt JUDICIAL OFFICER : COUNSEL : Plaintiff: J.A. Trebeck Defendant: P. Strain SOLICITORS : Plaintiff: Garden & Montgomerie Defendant: Nelson Keane & Hemingway CATCHWORDS : Appeal from award of Agricultural Committee awarding compensation to tenant - s.38 Commercial Arbitration Act - "manifest error of law on the face of the award" - finding of tenancy with person other than applicant - compensation under s.24 of Agricultural Tenancies Act awarded to applicant not tenant - intent of Committee unclear - remitted. Agricultural Tenancies Act 1990 LEGISLATION CITED : Commercial Arbitration Act 1984 Justices Act 1902 CASES CITED : N/A DECISION : Remit to the Committee the award. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No. 11237 of 2000 GREG JAMES, J. WEDNESDAY 28 FEBRUARY 2001 MYRIL MOLLY JONES & ANOR v. GOSSAMER DOWN CASHMERE PTY. LIMITED JUDGMENT 1 HIS HONOUR: Application has been made for an extension of time to make application for leave to appeal and to appeal under s.38 of the Commercial Arbitration Act 1984 from an award of an Agricultural Tenancies Arbitration Committee on an application made by the defendant under the Agricultural Tenancies Act 1990. 2 The application for an extension of time is supported by affidavit. That application is not opposed. I therefore need not turn to the precise merits of the contention that the delay should be excused, particularly in the context that following some debate in this court as to the merits of the application for leave to appeal, the parties are both of the view that the appropriate course is to grant leave and the appeal and to remit the award. 3 The provisions of the Commercial Arbitration Act are applied to the Agricultural Tenancies Act by s.23 of the former Act. Section 38(2) of the Commercial Arbitration Act provides that:- "Subject to subsection (4), an appeal shall lie to the Supreme Court on any question of law arising out of an award." 4 Section 38(3) confers the power on the court to remit the award on the determination of an appeal under s.38(2). 5 Section 38(4) provides that the appeal may only be brought:- (a) with the consent of the other parties to the arbitration agreement; or (b) subject to s.40, with the leave of the Supreme Court." 6 Section 40 deals with exclusion agreements such as might restrict access to the court. It is not contended that s.40 is here applicable. Section 38(5) defines the circumstances in which leave may be granted. 7 Leave is, of course, discretionary but must not be granted unless the court is of the view that:- "(a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and (b) there is:- (i) a manifest error of law on the face of the award; or (ii) strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law." 8 Leave may be granted on conditions by reason of s.38(6). 9 I have grave doubts that the question at issue in the present proceedings, of who is in law the tenant, is such that the determination of it may add or may be likely to add substantially to the certainty of commercial law, whatever those words may mean. However, it is perfectly clear, and both parties accept, that if there is an error of law, it is manifest on the face of the award and that the determination of the question of law concerned must substantially affect the rights of the tenant party to the arbitration agreement in question, or the party that applied for the arbitration who may or may not be a tenant within the meaning of that term as used in s.3 and s.4 of the Agricultural Tenancies Act. That becomes important since when one examines the award one can see that the applicant for arbitration was the defendant. 10 The award finds the existence of a tenancy between the plaintiffs and Mr. and Mrs. Patrick. Although it describes Mr. and Mrs. Patrick from time to time as trading as the defendant, it describes their activities by referring to matters entirely personal to each of them and no matter is referred to in the award as indicating the party to the tenancy agreement, or the tenant in the expanded sense as referred to in s.3 of the Agricultural Tenancies Act, or as that term appears to be used in other sections of the Act, notably s.4, the definition section, s.5, ss.16, 17, 19 and 26, so as to permit for any real equivalence between the references to Mr. and Mrs. Patrick and the defendant in the award, or as indicating an intention to find that they were contracting as agents on behalf of the company who was in law the tenant. 11 So it appears that the Committee has found a tenancy in someone other than the applicant, but yet has awarded compensation in the nature of damages under s.24(1) to the applicant as a party aggrieved. 12 Shortly, it appears clear on an analysis of the use of the terms "party" and "parties" in the Act and having regard to the breadth of the definition of "tenant" and "tenancy" in s.4 of the Act, that s.24(1) speaks of parties not in the general sense of meaning a person but in the sense traditionally adopted by the law, of a person bound by a particular legal relation with the other, eg., party aggrieved as was referred to in s.112 of the Justice Act 1902 and in this context as meaning party to a tenancy agreement, whether in the narrow sense referred to by the common law or in a broader sense defined by the statute is unnecessary for me to decide. 13 In the absence of a finding that the company was a tenant in at least that broader sense, it would not have been open to the Committee to have awarded the compensation that it has in favour of that party. The issue was squarely enough raised as to who was the relevant party, as is clear from the face of the award, by the representative of the plaintiffs. It was submitted that:- "The claims were not within the Agricultural Tenancies Act 1989 (sic) because there had never been a tenancy agreement between the parties." 14 The description in the award of the finding made by the Committee as to who was the tenant, in my view, cannot be so regarded as to extend to an express finding that the applicant was the tenant. The description of Mr. and Mrs. Patrick trading as the applicant is, however, sufficiently equivocal for one to conclude that one could not find that the Committee concluded that Mr. and Mrs. Patrick were the tenants in their own rights explicitly. There may be an error of law by omission. 15 Suffice it, however, to say that it is the plaintiffs' contention that on the face of the award there was a manifest error of law in awarding compensation under s.24(1) to a person who was not found to be the tenant. 16 It is clear, because compensation of a substantial amount was awarded to that person, that the determination of the question of law concerned could substantially affect the rights of that person, the applicant who was the party that invoked the arbitration. The minimal conditions necessary for leave under s.38 have been satisfied. 17 With that in mind, both parties had submitted that the appropriate course is to remit the matter to enable the Committee to reopen the proceedings and to determine expressly who was the tenant and in favour of whom compensation should be awarded, if it is to be awarded. 18 Questions of costs were raised and I raised with counsel for the plaintiffs whether or not such remitter might really be a sterile exercise arising from an infelicity of expression which would be rectified by the Committee such as to make no real change except in the technical drafting of the award. He submitted strongly that one could not reach such a conclusion and it is a submission which, on the question of leave, I accept and which is in substance accepted by the concession of the opponent that the matter should be remitted. There is a real question, or at least there may be. 19 He submitted that costs should follow the event here and now. However, unless and until the Committee decides the matter, one cannot know whether it might consider the issue before it to be real and substantial. 20 I have concluded that costs of these proceedings should abide the determination of that question before the Committee and will therefore reserve costs, being prepared to entertain argument, if necessary, on that question after the Committee has reconvened and dealt with the substantive issue. 21 It is plain that it is an issue of some substance as to whether the party to a tenancy is a company, or is jointly the individuals who may be the directors of that company. The question is one that is entirely appropriate to be determined by way of there being findings of fact and an expression of the application of proper law to the facts. 22 I have published this judgment in short form dealing more cursorily with the questions involved than I might otherwise have done in the context of both parties submitting that the proper course was to make the remitter sought. Nonetheless, it is essential that I furnish some reasons both having regard to the provisions of s.38 and also so that the issue before the Committee on the remitter may be clear. 23 Therefore, I order that the time be extended to permit the plaintiffs to apply for leave to appeal from the decision of the Agricultural Arbitration Committee made on 30 March 2000. 24 I grant leave to the plaintiffs to amend the summons in accordance with the summons filed on 7 July 2000. 25 I grant leave to appeal from the decision of the Committee made on 30 March 2000. 26 The cross-claim may remain on file. 27 I remit to the Committee the award. 28 I reserve the question of costs of the proceedings. 29 I grant liberty to apply to each party on 27 days notice. ******** Last Modified: 03/08/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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